BY-LAWS IN MOTION
A WORKSHOP FOR THE PARLIAMENTARY SOCIETY OF TORONTO
CHAPTER 51, AMERICAN INSTITUTE OF PARLIAMENTARIANS
PRESENTED NOVEMBER 4, 2003
BY HENRY MILLER
USEFUL OBSERVATIONS ON BY-LAW DRAFTING AND REVISION
TYPICAL–NON PROFIT ORGANIZATION INCORPRATED IN ONTARIO
RONR should be used with care. As Eli Mina, a Canadian parliamentarian, observed at a Toronto seminar in March, 2003, many lawyers are reluctant to specify it as the parliamentary authority because it is so minutely prescriptive. A set of by-laws can just allude to principles of parliamentary law as its authority for procedure. One difficulty with this, however, is that in the case of a complicated issue several and sometimes conflicting authorities could be cited.
However, by-laws rank in the hierarchy of corporate documents as follows:
2. Letters Patent and amendments thereto, made from time to time
3. By-law (commonly referred to as "the by-laws")
4. Special Rules of Order adopted specifically by the organization
5. Parliamentary Authority - e.g. RONR (10th ed.)
6. Standing Rules - relate to the administration of an organization rather than to (parliamentary) procedure: commonly known as "Policies and Procedures"
Usually, when revising the by-law of an organization, the best approach is to develop and adopt an entirely new by-law which supersedes the old one. The new by-law is usually adopted by the Board of Directors and ratified by the membership of the organization at a special meeting of the members called for the purpose but which may be combined with the annual meeting as an "Annual and Special Meeting"
For a registered charity, the new by-law will have to be submitted to the Canada Customs and Revenue Agency ["CCRA"] and CCRA should be consulted during the revision process.
Also, sometimes, depending on what specific legislation the organization operates under, the regulator or chief funder of the organization needs to approve the new by-law.
For an Ontario corporation the Ministry of Consumer and Business Services should be consulted as to the most current filing/approval requirements. The same Ministry is a very useful source for obtaining a copy of the letters patent and revisions in the form of revised letters patent. Note that for federally incorporated organizations Industry Canada is the Department to consult.
In addition, if an agency is a member of an accrediting umbrella organization such as the United Way or Catholic Charities consultation with the accrediting agency is advisable to ensure the proposed new by-law meets standards for ongoing accreditation and membership review.
Finally, a legal review of the by-law is advisable.
As a starting point for a committee charged with revising a by-law, a good suggestion is to brainstorm to decide what is out of date or confusing in the current by-law and what the committee might like to see as positive changes, in the light of the ongoing evolution of the organization.
Finally, excellent overall guidance on governance, which sets the context for revising by-laws for non-profit organizations, may be found in Duties and Responsibilities of Directors of Non-Profit Corporations by Hugh M. Kelly, Q.C. and Mark R. Frederick by the Canadian Society of Association Executives ["CSAE"}. This booklet is inexpensive and worth getting for any Board. The CSAE's website is www.csae.com.
SEEING WHY BY-LAWS ARE WHAT THEY ARE
STARTING AN ORGANIZATION THROGH A MASS MEETING
References: RONR (10th edition) s.53, Bourinot’s Rules of Order (4th edition) Articles 51-53
The state of Toronto’s trees is beginning to become a cause for concern. Hardwood trees such as Oaks and Maples have a natural life-span of about 100 years. Many Toronto hardwoods are beginning to die of old-age. The canopy is under pressure because there is a missing generation of younger trees in many areas. A group of concerned citizens is invited to meet in the rented local library meeting room to deal with this problem. The organizers hope that a “friends of trees organization” will be established as a result.
In this exercise:
Start the meeting;
Elect a Chair;
Elect a Secretary;
Choose a Parliamentary Authority;
Choose the embryo organization’s mandate;
What do you need to remember about keeping order and moderating discussion?
What issues and organizational aspects does this exercise suggest need to be considered in the new organization’s by-law?
Space for Participants’ Notes
Note: This presentation does not constitute legal advice. For specific legal questions concerning any organization a lawyer should be consulted.